Divorce Mediation Blog

Bargaining in the Light of The Law: The Case of Divorce

Sunday, October 15, 2017

Levine Dispute Resolution Center - Guest Writer John Fiske

by: John A. Fiske

In “Bargaining in the Shadow of the Law: The Case of Divorce,” Robert H. Mnookin and Lewis Kornhauser. discussed many ways in which the law provides a framework for divorcing couples to define their own rights and responsibilities after divorce. 88 Yale Law Journal 950, April 1979. We have come a long way since that journal devoted its entire issue to conflict resolution, featuring their far reaching examination of private ordering in divorce. The concept could not have been more fitting, nor better timed.

The article helped to set the stage for the robust growth of alternative dispute resolution in many forms that we now enjoy, including our Supreme Judicial Court Uniform Rules of Dispute Resolution and the flowering of family mediation through organizations, training, literature and even an occasional Hollywood movie. But at the time they wrote, much of divorce law was in the dark. Probate and family court judges had wide discretion and little guidance, and unpredictable court results could depend on who your judge was and other seemingly capricious factors.

Light Dawns

So where are we now? By 2017 divorce law has become far more clear and often even predictable. The single most vital contribution to this framework for helping couples discuss and define their own divorce terms are the federally required Child Support Guidelines (CSG). One can only imagine the thousands of couples whose divorces have been simplified by the CSG. In my early days of mediation about 6 months after the article appeared, I was constantly asked, “What will my child support be?” and Mr. Hem met Ms. Haw: “Well, it depends. It depends on what county you are in, or who the judge is,” etcetc. The law shed little light on the subject, and any shadows shifted or conflicted.

A glimmer of light appeared in October, 1978 when Probate and Family Court Judge Edward Ginsburg wrote an article, “Predictability and Consistency in Alimony and Child Support Orders,” in the Boston Bar Journal. He proposed a simple formula based on the income of the payor; that light helped to settle many cases. In one mediation the husband said, “I think 33% of my income is too much for me to pay my wife but I am willing as long as I know I am not the only guy in Middlesex County doing it.”

As more lights appeared, the shadows diminished.

The CSG worksheet now allows couples to consult their computer and find the answer to their question in minutes.

The parents may not agree, but they have a framework for their negotiation. For example, mediating couples can ask, “Does the CSG amount make sense for us?” and they can compare the suggested amount to their actual living expenses to make an informed decision in the light of what a court would do.

The Alimony Reform Act of 2011 sheds more light on various alimony questions, making it clear that the law allows short term alimony, proposing a simple formula for calculating the amount and even provides time limits. For example, the shadow of cohabitation is specifically illuminated: couples can choose from a menu of alternatives from revision or termination of alimony to suspension during the cohabitation period. The appellate courts have been conscientious in taking appeals to clarify various provisions in the Act. For example, in Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) the Appeals Court held that a judge cannot enter an alimony order for a fixed percentage of the payor’s income in the future because this “self-modifying” order is not supported by findings, etc. But nothing prevents couples from entering separation agreements providing for such flexible arrangements and courts from approving these agreements. In George v. George, 476 Mass. 65 (2016) the Supreme Judicial Court said temporary alimony does not affect the length of general term alimony obligations. Similarly, questions about when it is appropriate to attribute income to either party have been clarified in Emery v. Sturtevant, 88 Mass. App. Ct. 1118 (2017), thereby limiting one of the few remaining alimony and child support issues for lawyers to argue about.

Pesky question of property division have been similarly clarified by case law, such as the role of property inherited before, during or after the marriage and whether family trusts are marital property to be divided or mere expectancies which may or may not occur. Lauricella v. Lauricella, 409 Mass. 211 (1991) and Pfaffenstiehl v. Pfaffenstiehl, 475 Mass. 105 (2016).

Effects of Light

One effect of this evolving clarity is to change the question. Instead of arguing over what a court would do if the case were tried, the question is whether the court will approve the agreement the clients have reached. For clients interested in private ordering, that is the real concern. How long alimony or child support should last is already defined, and parties can agree to something different now that they can make an informed decision. In a mediation this July the husband with $80,000 of income said he thought they should make their incomes equal though his wife had no income, and she agreed. They knew that the law would only require him to pay one third of the difference in their incomes: they each knew what they were getting and they each knew what they were giving up. They felt this agreement to be fair and right, and their only question was whether the court would approve it.

It remains important for couples to know what the light of the law is, not to tell them what to do but to give them some objective criteria by which to judge their own solution. In Getting to Yes, Fisher and Ury recommend four principles of negotiation ending with consideration of some objective criteria. Houghton Mifflin Company (1981) p. 84. Here the illuminating law can be of great help, not to dictate but to inform their own solution.

“’I am half sick of shadows,’ said the Lady of Shalott” in the poem by Tennyson, but her facing reality had unhappy consequences. While I am glad to see the law moving us out of the shadows, we can hope for better informed settlements of divorces and other family disputes. Parties can know the norms and make their own choices when and how to adapt to them. Lawyers can have more confidence in predicting whether negotiated and mediated agreements will be approved by the courts, and can inform clients what they are gaining and what they are giving up in reaching their own solutions. As Superior Court Justice Douglas H. Wilkins pointed out in his letter to Lawyers Weekly on July 17, 2017, new court rules provide further support for early mediation: the path to a desired result is not only illuminated but can be significantly shortened by helping lawyers, mediators and clients to discuss appropriate settlements from the very beginning of a case. Children benefit from their parents reducing conflict. We can spare the courts unnecessary litigation, and sleep better nights.

John A. Fiske is of counsel at Healy, Fiske, Richmond & Matthew, a Cambridge firm concentrating in family law and mediation since 1979.


Online Dispute Resolution: Ready or Not, Its Already Here

Wednesday, July 19, 2017

Recently, we attended the Massachusetts Bar Association’s inaugural Dispute Resolution Section symposium, and the annual AFCC meeting, each in Boston. Both programs featured extended discussions of mediation involving a “fourth party”, as in, the two parties, the mediator and technology.

We expected the focus to be running divorce mediations with an absent party or two, attending virtually by Skype or FaceTime, or even the good old-fashioned speaker phone. Most of us have done a bit of this and addressed the limitations imposed by the lack of eye-to-eye contact and the sense that the person on the screen or behind the phone is actually checking his email, or her text chain.

More profound was an AFCC speaker’s demonstration of a Dutch program wherein parties log on to a website that guides divorcing parties through a progression of multiple choice questions that range from the prosaic (biographical) to the attitudinal (“you image your child living…”) to the transactional (“you propose to…”). The notion is that mediation does not even have to be synchronous. As one speaker put it, in essence: “the client can sit in bed with a glass of cabernet and ponder a response…and we don’t often have a chance to mediate with cab.”

The upshot of the Dutch notion of online mediation for family law is that the mediator may just be reduced to the “chat” person you get when you go on a retailer’s website: “may we help you select a model?”. The Dutch model will even assign a mediator to “run” the process, taking our theoretical descriptor of “facilitative” to a new low, or new high, depending on your perspective.

We get how for many divorcing couples, whose issues are fairly rote and shaped by state-mandated formulas, much resolution can emerge from hi-tech questionnaires. But we, who spend our days doing the intensely personal work of educating, observing, empathizing, encouraging and reasoning with emotionally fraught parents and spouses, have a hard time seeing how the application of this kind of dispute resolution will translate to the population whom we generally serve.

Another AFCC speaker pointed out that we who pride ourselves on the personal attention we devote, are already engaged in Online Dispute Resolution when we email, text, spreadsheet and utilize cloud based services to communicate with and assist our clients. So, maybe we have the best of both worlds already.


Family Law Arbitration Supported by Appeals Court, But Questions Remain: Gravelin v. Gravelin

Wednesday, May 11, 2016

In its recent Gravelin v. Gravelin, the Massachusetts Appeals Court flatly confirmed that:

  1. There is strong public policy in favor of arbitration in Massachusetts.

  2. Arbitration is a valid means of resolving family law disputes.

  3. A judge may not order parties to binding arbitration without their agreement.

  4. A judge may enforce parties’ valid agreement to arbitrate present disputes.

  5. While the Massachusetts version of the Uniform Arbitration Act (M.G.L., ch. 251) does not explicitly govern family law matters, its overarching principles apply.

  6. Review of an arbitral award is limited to determine if the arbitrator:

      a. Awarded relief beyond that to which the parties agreed;
      b. Awarded relief prohibited by law; or
      c. Decided a matter based on fraud, arbitrary conduct or procedural irregularity.

  7. A judgment that enters upon confirmation of an arbitrator’s award on a matter that is modifiable, remains modifiable, by the court under applicable standards.

Four important questions that Gravelin did not confirm or clarify, with our comments:

  1. While a judge may enforce of a valid agreement to arbitrate a present dispute, is it error not to do so?
    Comment: We would think so given that the applicability of MUAA “principles”, which include an obligation to enforce a valid agreement to arbitrate.

  2. Does Justice Blake’s comment that the appellant had the advice of counsel in agreeing to arbitrate establish that as a quid quo pro to enforcement?
    Comment: Advice of counsel is not required to bind a party to arbitrate in a commercial context, as we all know from the boxes we routinely check with every software purchase and credit card transaction. Perhaps counsel should be required in the special context of family law.

  3. Is a judge precluded from enforcing an agreement to arbitrate that is embodied in a previous agreement, such as a separation agreement, for a dispute that arises later in time?
    Comment: Justice Blake invoked Bloksberg v. Bloksburg (1979) to suggest that enforcement of such an agreement to arbitrate is not required, because that would implicate established ban on courts imposing arbitration where the parties have not agreed to it. Bloksburg, in turn, suggests the policy justification that this might permit a judge to slip an arbitration clause into a judgment on his own initiative; and that a previously agreed arbitration clause is inherently modifiable. This precedent, and reliance upon it, strikes us as simplistic, because:
      a. If the parties validly agreed to arbitrate future disputes in an incorporated separation agreement, how has the court usurped their rights?
      b. If the court declines to enforce an arbitration provision from a separation agreement on the theory of modifiability, should that decision not require findings of material changed circumstances for a merged provision, or something more, for a surviving one?
  4. Whither the concepts of greater review for child support or parenting matters?
    Comment: Gravelin was a child support modification matter. The previous Reynolds v. Whitman matter included a child support award, too. In the earlier case, the Appeals Court found no fault for not applying any heightened level of review beyond a “fair & reasonable” or “fair & equitable” test, as it implied was required for asset division, because the trial judge showed “meticulous attention to the argument of the parties”, thus, the appellate court observed, negating the need for de novo review. Taken together, do the two cases close the matter of child support review? Unfortunately for the appellant (and for readers), appeal of the review hearing process by the trial judge was foreclosed by procedural defect, so clarity remains. And, since parenting issues were not a part of this case, or any other reported case, just where do we stand on arbitration of parenting matters?

No question, Gravelin is a helpful case, but, as you’ve read here before, a dedicated family law arbitration statute could surely help clarify these remaining questions. Thanks to the Appeals Court for highlighting this, intentionally or otherwise.


What does Katz, Nannis say about family law arbitration? Katz, Nannis & Solomon v. Levine – Part 2

Wednesday, March 30, 2016

In our last entry, we commented on the Supreme Judicial Court case that recently held contracting parties to the tightly limited review provisions of the Massachusetts version of the Uniform Arbitration Act, M.G.L., ch, 251 ("UAA"), and barring contractual terms that broaden review. Katz, Nannis was a civil action involving the involuntary of ejection of a partner from a CPA firm, and a dispute over enforcement of an arbitral award denying him exit benefits, and assessing damages for breach of non-compete provision, all pursuant to the principals’ election of binding arbitration in their business agreement.

Today, we wonder how that may impact current state of family law arbitration, here.

The most prominent family law appellate case in Massachusetts is Reynolds v. Whitman, 40 Mass. App. Ct. 315 (1996), wherein the prime issue was. "… whether alimony and child support were properly made the subjects of voluntary and binding arbitration pursuant to a separation agreement." Id., at 316. The former husband, aggrieved by an arbitrator's award, argued that arbitration of this dispute violated public policy.

The Appeals Court disagreed, finding the arbitration provision enforceable and the award properly confirmed. Underscoring its view of enforceability, the appellate panel noted that:

    Rather than discouraging arbitration of domestic disputes, the cases support it. Arbitration may offer a more efficient resolution of the dispute, reduce court congestion, and minimize acrimony that often occurs with divorcing parties. Id., at 318.

However, the court concluded with the caveat that:

    Any arbitration award must, of course, be subject to review by the judge, who has the authority, and the obligation under G.L., c. 208, s. 34, to make a fair and equitable distribution of property. Id.

While the contested issues in Reynolds included support, the court noted that the Probate and Family Court had found the arbitration award to be fair and reasonable. It is only fair to conclude that family arbitrator's awards must be found to be fair and reasonable as well as free from defects that can give rise to denial of confirmation of an award under the UAA.

The Reynolds Appeals Court noted that nothing in the parties' agreement to arbitrate would "...strip the judge of non-delegable supervisory functions." Id. We presume that the court, here, refers to child custody matters, wherein the parties may not strip the court of its parent patraie powers. This suggests either that the trials court should apply a higher "best interests" review to an award on point; or more extremely, a non-was able right to trial de novo.

Finally, it is pertinent to the current topic, that the Reynolds separation agreement called for arbitration to be binding "...unless modified by the Probate Court." We cannot know if this was an artful use of "modified", referring to a later alteration of the the award for proven changed circumstances in a modification action; or less artfully, to the vacation or revision of an award, at the confirmation stage. We presume the latter.

So, does Katz, Nannis change any of this? Since all arbitration arises from the UAA, we family law arbitration has the same root. Therefore, we infer that parties to a domestic relations agreement to arbitrate cannot impose a standard of review on the trial court that is different from that expressed in the UAA.

But what of the Appeals Court's own apparent declaration of a "fair and reasonable" standard, that itself exceeds M.G.L., ch. 251's review provisions? And the Probate and Family Court's non-delegate parents patriaie responsibilities? There are so few appellate cases that involve family law arbitration that it may be a very long time before we know. We will operate under the assumption that Reynolds remains good law; and that parens patraie trumps all.

A dedicated family law arbitration statute, of course, could resolve this question, and clarify other aspects of the unique of law vis vis arbitration, to everyone's benefit.


Good News and Bad News: Arbitration Just Became a Little Bit More Final

Wednesday, March 16, 2016

Katz, Nannis & Solomon, PC v. Levine

Late last year, we anticipated the decision in this case, and expressed the hope that the SJC would rule that parties may contract for levels of review of arbitration awards that are broader than those expressed in M.G.L., ch. 251, the Massachusetts version of the Uniform Arbitration Act (UAA). We felt, and still believe, that many family law counsel and clients shy away from this private, efficient and effective private dispute resolution methodology, for fear of giving up traditional litigation rights of appeal for errors of law and abuse of discretion. Well, the SJC didn't it.

In Katz, Nannis & Solomon, P.C. v. Levine, an accounting firm partner, Bruce Levine (no relation) was purged from his firm for reasons that the other parties characterized as "for cause"; and such a termination was, under the firm agreement, deemed to be "involuntary", and therefore subject to forfeiture of both share redemption payments and deferred compensation benefits. Also, the partners alleged that Mr. Levine's conduct ran afoul of the non-compete provisions of the agreement, demanding damages. All matters were subject to mandatory binding arbitration, but accompanied by contractual rights of court review that exceeded those of the UAA, if short of full appellate rights.

When Mr. Levine suffered an adverse arbitration award, he pressed the agreed form of review, which his ex-partners challenged, on the basis that the UAA precludes the right to contractual rights of review. The trial judge sustained the challenge, ruling that UAA review provisions are exclusive and preclusive of any additionally negotiated review rights; and Mr. Levine appealed. The SJC took the case on direct appellate review.

The adverse award ripened into a full-fledged disaster for Mr. Levine (nearly $1.75 million plus interest) when the SJC ruled that the UAA trumps contractual efforts to deviate from its extremely narrow grounds of review, as a matter of law. Mr. Levine complained in his reply brief that the expanded right of review was an essential element of the agreement to arbitrate, and its deletion would nullify the entire arbitration clause, thus rendering the award void. The SJC dispatched the claim as too little, too late, since Mr. Levine had not raised the issue either in the court below, or even in his brief-in-chief: harsh result, perhaps, but not a particularly surprising one, on the appellate record described.

While the decision seems consistent with underlying law, and the UAA policy that arbitration awards should be quite nearly final when issued (hence, the good news) we regret the outcome in the family law context (hence, the bad news). As divorce mediators and arbitrators, we are all about expanding people's rights, and not narrowing them. If constricted review discourages an otherwise useful and efficient process for parties engaged in domestic relations agony, why shouldn't they be able to devise their own intermediate rights of review, if it will make both parties more amenable, potentially saving the parties years of costly and frustrating litigation of cases.

Since the SJC decision is one of statutory construction, and not constitutionally based, our legislature could, of course, adopt broader review rights for family law cases exclusively, as has occurred elsewhere. One day, perhaps…


Mandatory Mediation is an Oxymoron that the Appeals Court Gets! (At least when the parties have to pay) Ventrice v. Ventrice

Wednesday, March 25, 2015

Recently, a pair of “transformative” mediators claimed that without mandatory mediation, the pre-destined role of mediators as apostles of self-determination will never be fulfilled. We took the authors to task in the Winter 2015 Issue of the Massachusetts Council on Family Mediations’ Family Mediation Quarterly for many reasons, including this proposition. Putting aside the considerable irony that practitioners who seek to transform relationships, not content to merely settle disputes, think they can do so when people are compelled to pay them to do it, we are pleased to see that the Massachusetts Appeals Court is not similarly deluded.

The recent case Ventrice v. Ventrice addressed the appeal of a father whose divorce judgment forbade either party from filing a subsequent complaint for modification until the parties had first engaged a private pay mediator.” Citing Article 11 of the Massachusetts Declaration of Rights, the appellate court wisely vacated this provision because it chilled the rights of potential litigants “…obtain…justice freely, and without being obliged to purchase it.”

As one former Probate and Family Court judge, and two former long-time litigators in that court, we can certainly understand the trial court’s concern and motivations: we can both picture a very thick red file sitting on the bench, the dread that it promotes in all courtroom attendees, and most importantly, the havoc that such cases wreak on children and families. But, on so many levels, mandatory mediation, especially the private pay variety, is just wrong:

  1. As the Appeals Court cited at footnote 14, Rule 2 of the SJC’s Uniform Rules on Dispute Resolution defines mediation as a “voluntary process”;
  2. Few obdurate litigants will enter mediation in good faith and with the emotional skills to use it productively;
  3. It is unseemly for the courts to force people to patronize a segment of the professional community at the cost of others, however enlightened and useful we think we are (!); and,
  4. It undermines mediators, whose very professional personae include devotion to facilitating self-determination for competent persons who make the choice to seek us out.

While the Appeals Court reversed on state constitutional grounds, its decision was sound for all of these reasons, and, in addition another important error that they did not mention. The trial court’s divorce judgment not only mandated private mediation, but it ordered the parties to pay the mediator equally “…unless otherwise allocated by the mediator.” In other words, the judge not only mandated private mediation, but also private arbitration, since mediators, by definition, wield no decision-making authority whatever, let alone one so fraught as a financial sanction, which fee reallocation most surely is.

We love mediation and arbitration. We have actively advocated to foster broad acceptance of arbitration as an efficient, cost-effective form of family law dispute resolution. But whether mediating or arbitrating, our dispute resolution table cannot stand without its most equal among equal legs: voluntariness.

We are glad that the Appeals Court got that.


1"Reclaiming Mediation’s Future: Getting Over the Intoxication of Expertise, Refocusing on Party Self-Determination", by Robert A. Baruch Bush and Joseph P. Folger; Mediate.com Newsletter, December 3, 2014 (#558).

2Presumably, the court intended that the parties actually mediate, rather than just hire the mediator, as the judgment literally required.

3The court did exclude contempt actions from this order.


A Very Beautiful Thing About Mediation

Wednesday, March 04, 2015

Sometimes it takes an exception to reveal a rule.

At a recent mediation, one of us asked a question. In an effort to figure out how to navigate a rough passage the parties encountered in their discussion, the question was: "Does that exchange reflect some of what went wrong in your marriage?" The answer, in essence, was "Yes, and..." What came after the "and" was an explanation of the marital breakdown, including an acknowledgement of infidelity by the speaker.

To those of us who represented divorce clients for years, the client revealed information that was unremarkable. As practitioners, we routinely asked questions about "conduct", as in "who did what to whom,” as part of everyday of case introduction, evaluation and rapport building with clients. That is, when it didn't spill out in response to "Hello, how may I help you?"

The information, mostly private and intensely painful to the party, was rarely relevant to reasonable strategy or potential outcome, but it provided an outlet for the client's hurt and anger, it permitted the lawyer to rule out the kind of outrageous conduct (usually financially-linked) that could influence result. This kind of revelation also allows counsel to show empathy and, on occasion, a flash of advocacy, that might bind the lawyer-client relationship, for good or otherwise.

Sometimes, the client's personal story spices up an otherwise ho-hum interview. On rare occasion it may be interesting or titillating. Every once in awhile, it might cause a lawyer's "maybe I don't have it so bad" moment of personal reflection. But, rarely, very rarely, does it lead to a strategic insight or game-changing perspective on trial or settlement. For a client who is recruiting an ally, and for the lawyer charged with assessing "conduct of the parties during the marriage" in M.G.L., ch. 208, §34, the discussion is inevitable.

With both of us now long out of the representation business, a light went on after the exchange with mediation client above. We just don't hear that kind of thing very often anymore; especially when lawyers are not actively attending mediations.

One of the great promises of mediation is the dignity that comes from self-determination; and self-determination includes process, and not just substance. If conduct is relevant to the parties, they will tell you. If it is section 34 headline grabbing stuff, then we will learn it, in time. But for the vast majority of people, most of the time, fault and perceived misconduct, is an intensely private affair. If they have any self-awareness at all (as most mediating parties do), the clients recognize that a marital breakdown is a mutual failing, that cause and effect are murky at best and that spilling it out to a (non-therapeutic) stranger doesn't make the story go away, or even hurt any less. It simply poisons a well that is already too toxic to survive intact.

Many mediators may respond: "We could have told you that before you started.” However, to us it is a small insight worth sharing. It is also reason number 1,642 why it is great to be a mediator.

Have we grown indifferent to our clients' suffering, or even just incurious? We don't think so. We just think that our clients are bright enough to know what they need to tell us, and when; and we trust our instincts and human connections to know the rare occasion when a direct inquiry may be useful to the process, or even necessary (e.g., domestic abuse). That the exchange above is exceptional at all proves the point. We are there to facilitate productive discussion and to help structure dispute resolution. Therapy should be left to therapists; strategic alliances to counsel; and consolation to family and friends.


Massachusetts Alimony Reform and Divorce Mediation: Is It Information or Legal Advice?

Friday, November 15, 2013

Alimony reform, effective March 1, 2012, created a number of important time sensitivities that did not exist previously in the spousal support law of Massachusetts. Addressing these timing issues in divorce mediation raises important challenges for the practitioner, one of which is how to find a balance among three imperatives: mediator impartiality, informed client decision-making and avoidance of giving legal advice. Here, we ask: when we "inform" clients about particulars of the alimony statute that carry timing perils or opportunities, are we giving information or legal advice?

Why does this question matter? It certainly matters to attorney mediators whose licensure is subject to Supreme Judicial Court's Mass. Uniform Rules on Dispute Resolution 9(c)(iv), which permits lawyer to" ... use his or her knowledge to inform..." but "... shall not provide legal advice... in connection with the dispute resolution process!' This rule is consistent with the American Bar Association's Model Standards of Practice for Family and DivorceMediation, Standard VI (16) (" ...a mediator may provide information that the mediator is qualified by training and experience to provide. (But' Mlle mediator shall not provide. .legal advice."

Meanwhile, for all mediators, including non-lawyers, Standard VI(13) of the Association of Family and Conciliation Courts (AFCC) Model Standards of Practice for Family and Divorce Mediation echoes the ABA standard; and the MCFM Standard of Practice 4(C) falls just short of prohibition, stating that "The mediator may give general information that will help the parties make their decision, but shall not recommend specific course of action regardless of professional background.' In short, whether or not individual theorists or mediators agree, the prevailing consensus rules out legal advice, across the board. (For non-lawyers this implicates the profound challenges posed by the unauthorized practice of law dilemma discussed by David A. Hoffman in his piece in the Spring 2013 issue (Vol. 12, No. 2, p.22) of Family Mediation Quarterly. That issue is outside the scope of this article.)

Returning to the alimony information/advice question, it arises in the broader context as we addressed in the Spring 2013 issue (Vol. 12, No. 2, p. 1) of Family Mediation Quarterly: a collection of rules and statutes that trigger rights, obligations and protections that accompany the start of court actions involving family law disputes. These range from automatic financial retraining orders, to mandatory financial disclosure ,retroactive modification and statutory interest on contempt judgments. For the most part: they are procedural; where substantive, they are peripheral if nonetheless important.

Alimony 'reform" places central, substantive alimony rights and exposure squarely in play. Simply put, when a divorce complaint is filed and served matters in numerous potential ways. These timing issues are ncw, important and help illustrate this important mediation practice issue; while bearing fully in mind that principles discussed apply far more broadly.

In relevant part, the new alimony statute introduces time limits for alimony in all marriages of fewer than 20 years. "Marital" months are tabulated, and for each 5 years, a progressively higher percentage (50% - 80%) determines the maximum alimony term. The law also provides two new kinds of short term or lump sum alimony that cannot be extended for any reason, but only in marriages that are shorter than 5 years' duration. Critically, the length of marriage is confined to the number of months elapsed from the date of marriage to the date of service of a summons and complaint for divorce.

In summary, the decision of a party to file and serve a complaint for divorce, or to not do so, can alter the substantive course of the mediating parties' divorce by:

  1. supporting one party's claim fin- a time limited and final alimony duration, Or not;
  2. increasing the length of maximum general term alimony both by a fraction of each month that passes before service, and if those months complete five, ten and fifteen years of marriage, by increasing that fraction from 1/2, to 3/5 and 4/5 respectively, or conversely, stopping the "alimony dock"; and
  3. enabling an expected alimony recipient to request unlimited duration alimony for 20+ year marriages, or otherwise being limited to 80% of the marriage's length.

If parties are actively working with counsel during mediation, we may infer that they are aware, or should be, of these basic legal facts. The physical presence of counsel in a mediation gession may mitigate our uncertainty because first, there is opportunity to inquire of counsel or to hear counsel's comments on point; and second, because the attorney's presence serves to delineate roles in the clients' minds as in: "my lawyer is here to advise me, the mediator to mediate".

[A]s mediators, we are all about people having sufficient information to make their decisions knowing and voluntary.

As partly noted by David A. Hoffman's recent piece (above), according to one pertinent authority, the Commonwealth of Virginia's Unauthorized Practice of Law standards:

    Mediators may make statements that are declarative of the state of the law on a given legal topic and these statements are generally permissible.


    Mediators may rely on their training, experience, or even their own analysis of statutes or case law when making these declarations...

    [A] permissible statement declarative of the law in one context may constitute unethical.., legal advice in another. Mediators must carefully consider whether, under the totality of the circumstances, a law-related statement is likely to have the effect of predicting a specific resolution of a legal issue or of directing the actions of the parties... [S]tatements made by a mediator in the presence of the disputants' attorneys are less likely to influence or direct their actions than if made outside of the attorneys' presence.

Even if counsel is not present, and a client volunteers awareness of the alimony rules in a session, the mediator's response can be sensitive to these cautions by being fairly straightforward. Confirm what is accurate; correct what is not; fairly explain the internal interaction among various statutory provisions, and impact with prior, but still "good" law, and that there is much to be clarified over time by interpretive case law. If we do not urge a result, if we try EO refrain from predictions and be sure to give fair balance to the various factors involved, we should not trip the wire between information and advice. As a consequence, we should avoid the appearance of introducing impermissible bias by urging a particular result that one party may not fully embrace.

What is more problematic is the scenario when the parties exhibit no clue about this legal framework or that it even exists; or they have only vague or misinformed ideas. Yet we know the basic facts of the marriage, i.e., the date of marriage and the presence or absence of service. We are thus aware that one statutory milestone or another is approaching. Do we initiate or cause an awareness of the statute? If so,are we informing or advising?

As cautioned above,it depends. For every rule of substantive law, one party or the other may stand to gain, and the other less so. So, when we bring a point of law to the clients' attention we risk that it be construed as legal advice, especially if the panics do not have lawyers in attendance; because that piece of information may change the way the panics' think about the issue at hand, and thus, may indirectly push the outcome in one direction or another.

But, does this make it advice, and as advice, does it subvert mediator impartiality? Without parsing the way in which the information is. framed and stated (which can easily shift information into advice), and assuming a neutral statement of law, we believe not. After all, as mediators, we arc all about people having sufficient information to make their decisions knowing and voluntary. With profound rights and obligations at stake, how can ignorance of the basic rules advance these twin goals?

As importantly, may not silence, like carefully provided information, create an equal if opposite impact on the parties' negotiation? Whether informing or choosing to remain mute, the mediator is (hopefully) making a conscious decision, and either choice may advantage one client or the other in their negotiations. It. is unreasonable, in our view, to condemn the choice to inform as legal advice, with resulting exposure to the claim of partiality, while excusing silence from either.

Plainly, we need to inform clients. We must do so with care; and with high consciousness of the neutrality with which we do it. As one of our pioneering colleagues, John Fiske, says frequently, there is opportunity and risk in everything that mediators do. If we have a practice bias, it is in favor of more relevant information rather than less. Figuring out how to thread the needk with useful information input that is neither advice nor improperly biasing is one of the joyful challenges that we face every day in helping couples resolve their family law matters without litigation; and we embrace it. 

Acknowledgement: Thanks to colleague and friend David A. Hoffman, Esquire, of the Boston Law Collaborative, for focusing us on the Commonwealth of Virginia UPI_ Guidelines, for teaching and talking with us about thc information-legal advice frontier.

William M. Levine, Esq. and Hon. E. Chouteau Levine (Ret.) are principals of Levine Dispute Resolution Center, LI.0 in Westwood and Northhampton, MA. Bill may be reached at wmlevine@levinedisputeresolution.com; and Chouteau may be reached at eclevine@levinedisputeresolution.corn.


Some of Our Best friends are Divorce Lawyers

Tuesday, October 08, 2013

There, we said it. Many of them are very good at what they do -- responsible sorts, even; and they are nice people. In a field and among circumstances that tolerate and even encourage some pretty bad behavior, sometimes divorce lawyers are the only cool headed adults in the room. Yet, in a culture that values lawyers only when you need one, we are very free to stereotype and thus condemn a whole walk of professional life with cheap jokes and throwaway lines that if spoken about a race, a gender, a sexuality or an ethnicity, would be taboo. Not so with lawyers -- divorce lawyers foremost.

Such was the case in September 23, 2013's Boston Globe column by Jennifer Graham. In her piece "Free to be you and mean", Ms. Graham explored the case of Lawrence Summer's fall from political grace, shunned from his desired job as head of the Fed, she claims, because he is a nasty man in the workplace. In pressing the theory that the public trust requires competency first and compatibility not-so-much, she reduces divorce lawyers to a cultural cliché, a rhetorical prop. Ms. Graham asks herself "...are there certain jobs where a certain level of jerkiness is an asset?" In mock seriousness we suppose, she answers:

"Divorce lawyers, maybe. I've heard it said that you should never hire one that you like."

We do not say that there are not divorce lawyers who are irritating, difficult, even unlikable. We know a few. Some of them make a pretty good living, too. But, does this make "jerkiness an asset"? In the perverse sense that being difficult to deal with sometimes does make divorce cases longer and more than necessarily complex, and therefore more profitable for the lawyers, can that really be said to be an advantage for the client? Our answer is: "almost never".

Liking your divorce lawyer is no substitute for hiring one who is smart, skilled and measured; but most clients most of the time benefit most from competent counsel with whom they wouldn't mind breaking bread, too. In a relationship that begins with faith and is built on trust, confidence and a sense of pride in being publicly represented by this person, likability matters. It matters in the feelings engendered in the client (often while absorbing unavoidable disappointment), in the opposing spouse, in forensic specialists, in courthouse personnel and -- very much so -- in judges who decide cases.

As divorce mediators and family law arbitrators, we are much aware not only of the competent service that we try to provide, but also the quality of the experience for the lawyers and clients who work with us. In our corner of the business, jerkiness surely does not pay. We know that we see a self-selecting population of clients and counsel -- those who have opted out of the more confrontational or extreme forms of dispute resolution, so we see little of the reprehensible few that Ms. Graham damns with disingenuous praise. But, the cause of one brilliant jerk doesn't justify smearing an entire craft, and it certainly didn't add credibility to the Graham piece.

Now, about journalists...


Private Case Management: What and Why?

Wednesday, January 23, 2013

Sometimes, people do not see mediation as an option for their cases for very good reasons; yet the public trial system does not meet their needs either. This can be due to time delays in the system, to the public-ness of the forum, to the subject area complexity of the matter to be tried, or other reasons. We have found in our practice that in these circumstances people are looking for an alternative way to manage cases outside of court, to the point of settlement or trial.

This means that they construct a process that is parallel to the courts, for the organized and efficient flow of a case to conclusion, with a professional who understands the legal substance, the subject matter content, the way court processes work and in whom the parties have mutual confidence. This person, who may be called a master or an arbitrator, holds initial conferences with the lawyers to lay out a road map for information gathering called discovery, for the creation of interim orders such as alimony, child support and custody. He or she sets up settlement conferences; and if necessary, tries the case as a judge would, except in a private setting and at the time and place determined by the parties.

Many clients and lawyers find this form of alternative dispute resolution to be effective and efficient.


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